Scalia Upbraids Obamacare Defender: 'We're Not Stupid'

Solicitor General Donald Verrilli Jr., who made the Obama administration’s case for the constitutionality of the individual mandate in the healthcare law Tuesday, was upbraided by Supreme Court Justice Antonin Scalia after he flubbed an exchange with Justice Elena Kagan.

Scalia interrupted Verrilli, tersely telling him, “We’re not stupid.”

At the time, Kagan, a former solicitor general whom President Barack Obama appointed to the high court, was agreeing that young people should be required by the federal government to buy health insurance because eventually, others will subsidize their healthcare in the future.

But Scalia shot back, arguing that young people will make the decision to buy health insurance eventually and do not need the federal government forcing them to engage in commerce.

Here's the exchange:

SOLICITOR GENERAL VERILLI: To live in the modern world, everybody needs a telephone. And the — the same thing with respect to the — you know, the dairy price supports that — that the court upheld in Wrightwood Dairy and Rock Royal. You can look at those as disadvantageous contracts, as forced transfers, that — you know, I suppose it’s theoretically true that you could raise your kids without milk, but the reality is you’ve got to go to the store and buy milk. And the commerce power — as a result of the exercise of the commerce power, you’re subsidizing somebody else –

JUSTICE KAGAN: And this is especially true, isn’t it, General –

VERRILLI: — because that’s the judgment Congress has made.

KAGAN: — Verrilli, because in this context, the subsidizers eventually become the subsidized?

VERRILLI: Well, that was the point I was trying to make, Justice Kagan, that you’re young and healthy one day, but you don’t stay that way. And the — the system works over time. And so I just don’t think it’s a fair characterization of it. And it does get back to, I think — a problem I think is important to understand –
JUSTICE SCALIA: We’re not stupid. They’re going to buy insurance later. They’re young and — and need the money now.

VERRILLI: But that’s –

Today’s main issue was whether Congress has the power to enact a law that requires people obtain health insurance, under the clause of the Constitution that allows it to regulate interstate commerce or possibly other provisions.

Here’s a sample of comments from eight of the nine justices today. Justice Clarence Thomas asked no questions, as is his practice.

Anthony Kennedy:

“The government is saying that the federal government has a duty to tell the individual citizen that it must act. And that is different from what we have in previous cases, and that changes the relationship of the federal government to the individual in the very fundamental way.”

Stephen Breyer:

“If we look back into history, we see sometimes Congress can create commerce out of nothing. That’s the national bank, which was created out of nothing to create other commerce out of nothing. I look back into history, and I see it seems pretty clear that if there are substantial effects on interstate commerce, Congress can act.”

Samuel Alito:

“Congress can force people to purchase a product where the failure to purchase the product has a substantial effect on interstate commerce, if what? If this is part of a larger regulatory scheme? Was that it? Was there anything more?”

Ruth Bader Ginsburg:

“People who don’t participate in this market are making it much more expensive for the people who do; that is, they will get, a good number of them will get services that they can’t afford at the point where they need them, and the result is that everybody else’s premiums get raised? It’s not your free choice just to do something for yourself. What you do is going to affect others, affect them in a major way.”

Elena Kagan:

“All these uninsured people are increasing the normal family premium, Congress says, by a thousand dollars a year. Those people are in commerce. They are making decisions that are affecting the price that everybody pays for this service.

John Roberts:

‘‘Can the government require you to buy a cell phone because that would facilitate responding when you need emergency services?’’

Antonin Scalia:

‘‘The federal government is not supposed to be a government that has all powers; it’s supposed to be a government of limited powers. And that’s what all this questioning has been about. What is left? If the government can do this, what else can it not do?”

Sonia Sotomayor:

“There is government compulsion in almost every economic decision because the government regulates so much. It’s a condition of life that some may rail against, but.”